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Tuesday, 16 November 2004
Page: 81


Senator Chris Evans asked the Minister for Defence, upon notice, on 13 April 2004:

(1) For each year since 1996, by service, how many members of the Australian Defence Force (ADF) have been medically discharged primarily or solely because of a sleep disorder (e.g. narcolepsy or sleep apnoea).

(2) For each year since 1995, by service, how many members of the ADF have been medically discharged for conditions other than a sleep disorder, indicating the range of conditions and approximate numbers medically discharged because of each condition.

(3) Are the figures given in answer to parts (1) and (2) regarded as broadly accurate in relation to the total numbers of ADF members who were medically discharged; if not, what margin of error is considered to exist between persons actually medically discharged and recorded as medically discharged.

(4) Are members who are medically discharged entitled to a lifetime pension that is indexed and not means tested; if not, what entitlements do ex-ADF personnel who are medically discharged receive.

(5) Can an explanation be provided for: (a) who is eligible for; and (b) the difference between (including in respect of eligibility tests), each of Military Superannuation and Benefits Scheme (MSBS) Class A, B and C invalidity pensions.

(6) (a) For which class of MSBS pension do ex-ADF personnel who are discharged primarily because of a sleep disorder qualify; and (b) if ex-ADF personnel qualify for different classes depending on the circumstances, can an explanation be provided in general terms of these circumstances.

(7) (a) For which class of MSBS pension do ex-ADF personnel who are medically discharged because of other conditions qualify; and (b) if these ex-ADF personnel qualify for different classes depending on the circumstances, can an explanation in general terms be provided of these circumstances.

(8) (a) Under what circumstances can a member of the ADF be discharged without a classification but with a stated reason for retiring being an impairment related to sleep disorders; and (b) how many ADF personnel fall within this category.

(9) Has the Chief of Navy exercised his discretion or considered exercising his discretion under regulation 99 of the Defence (Personnel) Regulations 2003 in relation to former member Warren Le Pastrier, if so, what was his decision.

(10) Can the Minister confirm that if a former ADF member successfully shows, to the department's satisfaction, that he or she was medically discharged on grounds that appear unsound or incorrect, the department is not obliged to notify ComSuper of this new information.

(11) Has the department notified ComSuper that a delegate to the Chief of Navy determined that Mr Le Pastrier was medically discharged on apparently erroneous grounds.

(12) Has the relevant delegate to the Chief of Navy written to ComSuper to advise it of the outcome of Mr Le Plastrier's request for amendment of his discharge type; if so, when; if not, why not.

(13) Does the Chief of Navy support Mr Le Plastrier's desire to have the termination of his service classified as being for a reason other than medical discharge, under the terms of regulation 99 or any other mechanism; if so, has the reclassification of Mr Le Plastrier's discharge been formally agreed to and/or recorded by the department and by ComSuper.

(14) Are a former member's MSBS invalidity pension entitlements affected if the department notifies ComSuper of a determination under regulation 99 by any of the service Chiefs in relation to that member; if so, how.

(15) Has a review of Mr Le Pastrier's eligibility for MSBS invalidity benefits been conducted; if so, when and what was the result.

(16) (a) Did the Defence Force Ombudsman or his delegate request that the department provide any documents relating to the medical discharge of Mr Le Pastrier on apparently erroneous grounds; and (b) was the request refused; if so, given that the request was made with Mr Le Pastrier's consent, for what reasons.

(17) (a) How many determinations (for example, exercises of discretion) have been made under regulation 99; and (b) have any such determinations been notified to ComSuper; if so, how many.


Senator Hill (Minister for Defence) —The answer to the honourable senator's question is as follows:

(1) The number of Air Force members medically discharged primarily or solely because of a sleep disorder for each year since 1996 are:

1997 - 0

1998 - 0

1999 - 1

2000 - 0

2001 - 1

2002 - 0

2003 - 3

Figures for the Navy and the Army are not readily available and Defence is not able to devote the considerable time and resources required to provide a response. However, limited information for 2002 and 2003 indicates that the following Army members were medically discharged primarily or solely because of a sleep disorder:

2002 - 1

2003 - 10

(2) For each year since 1995, the following numbers of Air Force members have been medically discharged for conditions other than a sleep disorder:

1996

1997

1998

1999

2000

2001

2002

2003

Bipolar Disorder

1

1

Crohn's Disease

3

1

Back Injury/Pain

19

29

14

18

12

18

16

18

Asthma

1

1

1

2

Adjustment Disorder

1

1

2

Kidney/Renal

1

Obesity

2

4

3

7

5

1

Osteoarthritis

3

2

1

3

2

5

Alcohol Dependence

1

1

1

1

1

Depression

1

5

11

14

14

6

14

Other

14

49

24

19

22

18

7

15

Epilepsy

1

7

2

1

1

1

Diabetes

1

2

Arthritis

1

Hepatitis C

1

1

2

1

Post Traumatic Stress

1

5

1

Leg/Arm Injury

3

1

2

1

2

1

1

Foot/Ankle Injury

11

5

3

3

3

3

Figures for the Navy and the Army are not readily available and Defence is not able to devote the considerable time and resources required to provide a response. However, the Navy has advised that the following personnel were terminated on the basis of being medically unfit for naval service.

1997

1998

1999

2000

2001

2002

2003

Sailors

68

107

98

104

94

110

87

Officers

1

6

12

17

6

17

3

Total

69

113

110

121

100

127

90

It is estimated that in 2002-03 and 2003-04 that approximately 426 and 506 Army personnel were medically discharged.

(3) Yes.

(4) Subject to specified exclusionary circumstances (outlined in response to (8) below) members of the Australian Defence Force (ADF) who are discharged on medical grounds may be eligible to receive an indexed superannuation pension provided they are assessed as having 30 per cent or more incapacity for civilian employment arising from their retirement impairment. Such pensions are not means tested, but are subject to periodic review which may, depending on the health and ongoing incapacity of the person, result in variation or cessation of the pension. The pension classification of a person may increase, but may not reduce, after the age of 55.

Members who are medically discharged as a result of a service-related injury or disease may also be entitled to incapacity payments under the Military Rehabilitation and Compensation Act 2004 if they are incapacitated for civilian employment. The weekly rate of compensation payable is 100 per cent of the member's ADF earnings for the first 45 weeks of incapacity and 75 per cent thereafter. Incapacity payments are offset dollar for dollar against the Commonwealth funded portion of the member's superannuation. Compensation entitlements are periodically reviewed and may be reduced or ceased in the event that the member is able to work in civilian employment. Payments cease at age 65.

Where a service-related injury or disease is assessed at impairment of 50 or more impairment points and the member is unable to undertake paid work for more that 10 hours a week and is unlikely to be assisted by rehabilitation to undertake such work, the member has the choice of either continuing to be paid incapacity payments or to be paid a life time, tax free, Special Rate Disability Pension (SRDP). The SRDP is the equivalent of the Special Rate (Totally and Permanently Incapacitated) pension payable under the Veterans' Entitlements Act 1986, but is reduced by all other compensation already paid for permanent impairment and by the Commonwealth funded portion of the member's superannuation payments.

(5) (a) Military Superannuation and Benefits Scheme (MSBS) Rule 22 explains who is eligible for each of the MSBS Class A, B and C invalidity pensions. The MSBS Rules are available at: www.scaleplus.law.gov.au.

(b) The difference between each of the MSBS classifications is as follows:

Class A - A Class A pension is based on the person's actual and prospective service multiplied by their final average salary and divided by a conversion factor of 12 to produce an annual pension amount.

Class B - A Class B pension is based on 50 per cent of a Class A pension, as described above, unless the person's actual service calculation is greater than that of 50 per cent of a Class A pension. In that case, the higher amount is the Class B pension payable.

Class C - A Class C classification is not pensionable and the person's employer benefit is based on their actual period of service multiplied by their final average salary. This `lump sum amount' is compulsorily preserved until the person:

(i) attains the age of 55 where he or she can access it as an indexed pension or rollover into another complying fund; or

(ii) attains preservation age (if greater than 55) where the benefit can be accessed by way of a pension, lump sum or combination of both.

The member's benefit component, comprising contributions and interest, is either refunded or, in the case of service occurring after 1 July 1999, preserved.

(6) (a) The MSBS classification process does not automatically apply a `classification' based on a particular medical condition.

(b) Members of the MSBS who may have the same retiring impairment may qualify for different classification levels (A, B or C) as each case is assessed on its own merits. There will usually be differences in each case, for example:

(i) the members will have different vocational, trade and professional skills, qualifications and experience;

(ii) by reason of (i) above, the members will have different kinds of civil employment which they might reasonably undertake; and

(iii) the degree to which the physical or mental impairment of the member is assessed as having diminished his or her capacity to undertake the kinds of civil employments referred in (ii) above.

ComSuper records show that, while the majority of former ADF members who have retired on the ground of invalidity because of sleep disorders have been classified as Class C, some have, for the reasons shown above, been classified as Class B or Class A.

(7) See response to (6) above.

(8) (a) Rules 32, 33 and 34 of the MSB rules outline circumstances in which a person retired on the ground of invalidity is not entitled to be classified for invalidity benefits, where:

(i) the person has less than two years service and has a pre-existing condition that was not substantially contributed to, or materially aggravated, by their military service (Rule 32);

(ii) the invalidity was due to an intentional act (Rule 33); or

(iii) the invalidity arose during a period of absence without leave exceeding 21 days (Rule 34).

Sections 27, 28 and 29 of the Defence Force Retirement and Death Benefits (DFRDB) Act 1973 contain similar but not identically worded exclusion provisions.

(b) As at January 2004, available ComSuper records show six former ADF personnel have been discharged with a retirement impairment specified as including, but not necessarily limited to, a sleep disorder but who have not received a medical classification under either the MSB or DFRDB schemes.

(9) This is currently being considered by Defence and its legal advisers in the context of a claim for damages that Mr Warren Le Plastrier has made against the Commonwealth arising out of the circumstances of his discharge from the Royal Australian Navy (RAN). Under those circumstances it would not be appropriate to comment any further on the circumstances relating to that former RAN member, particularly as the former RAN member has foreshadowed litigation against the Commonwealth in respect of the claim for damages.

(10) If a former ADF member is able to demonstrate to Defence's satisfaction, that he or she was discharged for a reason that later appears unsound or incorrect, there is no statutory obligation to notify ComSuper. As a matter of administrative practice, the ADF does notify ComSuper of any change in the reason for discharge when the change may be relevant to that former ADF member's entitlement to receive benefits under applicable Commonwealth military superannuation legislation.

(11) On 31 July 2003, ComSuper was provided with the same advice that had been given to Mr Warren Le Plastrier on 30 July, that there was sufficient doubt in the medical evidence surrounding Mr Le Plastrier's discharge to change the reason for termination to “administrative/normal”.

(12) ComSuper was advised in writing on 31 July 2003 and it has been confirmed that ComSuper received this correspondence on 1 August 2003.

(13) See response to questions (9) to (12) above.

(14) Not directly. ComSuper considers that action taken under regulation 99 of the Defence (Personnel) Regulations 2002 does not result in a retrospective change to a member's actual ground of termination from the ADF. In the case of a MSBS member, such action might, however, either prompt the MSB Board to reconsider on its own motion the initial invalidity classification decision made under rule 22 by its delegate or to review the member's current classification under rule 23. In the case of a DFRDB member, review of the member's current classification under section 34 of the DFRDB Act could result.

(15) Yes. On 26 February 2004, a letter was sent to Mr Le Plastrier's father advising that his son remained entitled to the superannuation entitlements payable to a person who had been discharged medically.

(16) (a) Yes.

(b) No.

(17) (a) Since 1 December 2002, eight cases have been considered by the Director General Navy Personnel and Training for change of reason for termination under regulation 99 of the Defence (Personnel) Regulations 2002. The Army does not keep this information and the Air Force has made no determinations under regulation 99.

(b) With regard to the Navy, ComSuper was advised of the decision in the two cases where the decision changed the member's circumstances and hence potentially affected their benefits. For the Army and the Air Force see the response to (17) (a) above.